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What is Vocational Rehabilitation - Part I

By Sean Oswald of Strong Law Offices posted in Workers' Compensation on Thursday, May 1, 2014.

There are many misconceptions held by injured workers as to what exactly vocational rehabilitation is. Some believe that vocational rehab means that the employer will pay for them to attend college and get re-educated or to attend some type of trade school to acquire new skills. Some believe that vocational rehab means that they will have to search for and find a job.

The truth is that either of those descriptions could apply. Vocational rehab can be as simple as a self-guided job search or as intensive as obtained an advanced degree. The bigger question is

Not what vocational rehabilitation is, but rather when is it necessary. In order for vocational rehab to apply, the injured worker must have reached maximum medical improvement (MMI) and have been determined to be capable of working but with permanent restrictions. Vocational rehab clearly does not apply to an individual who either is still treating or has been determined to be permanently and totally disabled. It is not common for a doctor to decide that an individual is permanently and totally disabled but rather to determine that he/she is in need of permanent restrictions to prevent further injury. For example an individual with a low back injury resulting in a fusion will likely need weight limitations as well as limitation on bending and twisting to ensure that no further restrictions arise. Is should be noted that just because an individual can lift a weight heavier than their restriction on a single occasion does not mean that it would be safe for the individual to regularly lift that weight in a work environment.

Often the best way to determine what those permanent restrictions should be is to obtain a functional capacity examination. (FCE) An FCE is a test which is usually 4-8 hours long and is conducted over 1-2 days in order to measure an individual's ability to perform work tasks throughout an 8 hour day.

Once restrictions are in place, then the next step is to see if the Respondent/Employer is able and willing to accommodate the restrictions. It is often felt by injured worker's that if they can't return to the job they had before that they shouldn't have to return to any job. The law however places obligations on the employee as much as on the employer. The injured worker has to be willing to work within the restrictions that are provided so long as the employer is able to accommodate them. This may result in the injured worker doing a job that they do not enjoy as much, but the law does not require that the accommodation be to a job that the employee enjoys but only that it be one within the restrictions.

If no such accommodations can be made by the Respondent/Employer then often the next step is a self-guided job search. If the employee is able to find alternative work then it will short cut the process of vocational rehab. However, the employee should be careful in how they go about this job search and should seek legal assistance to ensure that they are not endangering their future by the process. Sometimes, if no job is readily available a labor market survey will be conducted to determine if jobs exist within the local labor market that are consistent with the restrictions the employee is operating under as well as to determine what the range of pay is for such potential jobs.

Just because a labor market survey finds potential jobs does not mean that the injured worker will actually be able to land one of those jobs. It should be common sense that most employers when given the choice between hiring an employee with restrictions (even if they are within the limits of the job) and an employee without restrictions, will always choose to hire the employee without restrictions. The reasons for this should also be apparent.

Thus at this point it is often necessary for a professional vocational counselor to be hired to help the injured worker find a job. Here again, it is important for the injured worker to consult with an attorney because they may have the right to chose their vocational counselor.

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